"of all legal instruments, wills are the most inartificial, the
least to be governed in their construction by the settled use
of
Page 104 U. S. 294
legal technical terms, the will itself being often the
production of persons not only ignorant of law but of the correct
use of the language in which it is written. Under the state of the
science of law as applicable to the construction of wills, it may
well be doubted if any other source of enlightenment in the
construction of a will is of as much assistance as the application
of natural reason to the language of the instrument, under the
light which may be thrown upon the intent of the testator by the
extrinsic circumstances surrounding its execution, and connecting
the parties and the property devised with the testator and with the
instrument itself."
If we apply the methods thus indicated to the construction of
the will of Jacob Dawson, there can, it seems to us, be no serious
doubt about its meaning.
According to the averments of the petition, it appears that
twelve days before his death, Dawson executed his last will. At
that time, he was the owner of some real estate and of personal
property of the value of $958. He was the father of six living
children, all of whom were minors, some of them very young, and all
without any property in their own right. His wife, Edith J. Dawson,
was the owner of real and personal property to the amount of
$10,000 or more.
The promptings of natural affection would lead a testator so
situated to provide in his will not only for his wife, but also for
his infant children.
The disposition of his property is made by a single sentence in
his will. It seems clear that his purpose was to give to his wife
an estate for life in his property, subject to be divested on her
contracting a second marriage, and on the determination of her
interest either by her death or marriage, then an estate in fee to
his children. No man unversed in technical rules of construction
can, it seems to us, read this will without coming to this
conclusion. To hold otherwise would be to suppose the testator, in
drafting his will, was governed by abstruse rules of law in regard
to the effect of his expressions, of which, it is probable, he
never heard and had not the slightest conception.
The clause of the will which disposes of the testator's entire
estate provides first for the payment of his lawful debts. The
residue of his estate (after payment of debts) is then disposed
Page 104 U. S. 295
of as follows:
"To my beloved wife Edith J. Dawson I give and bequeath all my
estate, real and personal, of which I may die seised, the same to
remain and be hers, with full power, right, and authority to
dispose of the same as to her shall seem meet and proper so long as
she shall remain my widow."
This part of the disposing clause of the will is not open to
doubt. The phrase "so long as she shall remain my widow" refers to
and qualifies the estate granted as well as the power of
disposition. The clear and undoubted meaning of the sentence is
that as long as the devisee remains the widow of the testator, his
property, real and personal, shall remain and be hers, with full
power to dispose of the same. This construction, so far as it
concerns the estate granted, is so obvious that no discussion can
make it any plainer. How large an estate the widow was empowered to
dispose of will be considered hereafter.
But the testator, not satisfied with this unequivocal
declaration of his purpose, and to leave no doubt of his intention,
and to give direction to his property when the estate of his wife
therein should determine, proceeds to add:
"Upon the express condition that if she shall marry again, then
it is my will that all of the estate herein bequeathed, or whatever
may remain, should [shall] go to my surviving children, share and
share alike."
It would be hard to express more clearly the purpose of the
testator to devise to his wife an estate during her widowhood, and
on its determination a remainder in fee to his children.
The contention, however, of the defendants in error is that the
testator by this will gave to his wife an absolute estate in fee
simple, with power, so long as she remained his widow, to dispose
of it absolutely.
We find no warrant for this construction of the will, either in
its terms or in the circumstances which surrounded the testator.
The language is plain that the devisee was to take a life estate,
subject to be determined on her second marriage, with a limitation
over to the children of the testator. His purpose was clearly
expressed, to provide for his children as well as his widow, to
give the latter all his estate as long as she remained his widow,
but to put it out of her power to disinherit his children.
According to the construction of the
Page 104 U. S. 296
defendants in error, the will gave her the power of absolute
disposition during her widowhood, so that she could by her
conveyance entirely divert the estate from his children, and having
done this, could contract a second marriage without the loss of any
interest in the proceeds of the property devised to her by the
testator.
We think it was not the purpose of the testator to devise an
estate in fee to his wife. As already remarked, the devise is
limited by the words "so long as she shall remain my widow." But
even if these words were wanting, the limitation over to his
children in case she should marry again would control and restrict
the preceding words by which the estate was granted.
Smith v. Bell,
6 Pet. 68, is in point. The will construed in that case
declares:
"I give to my wife Elizabeth Goodwin all my personal estate,
whatsoever and wheresoever, and of what nature, kind, and quality
soever, after payment of my debts, legacies, and funeral expenses,
which personal estate I give and bequeath unto my said wife,
Elizabeth Goodwin, to and for her own use and benefit and disposal
absolutely, the remainder of said estate, after her decease, to be
for the use of said Jesse Goodwin,"
son of the testator; "and I do hereby constitute and appoint my
said wife, Elizabeth Goodwin, sole executrix of this my last will
and testament."
The Court held that this was a devise to the testator's wife for
life, with remainder to Jesse Goodwin. Mr. Chief Justice Marshall,
in delivering its opinion, said:
"It must be admitted that words could not have been employed
which would be better fitted to give the whole personal estate
absolutely to the wife or which would more clearly express that
intention. But the testator proceeds: 'The remainder of said estate
to be for the use of the said Jesse Goodwin.' These words give the
remainder of the estate, after his wife's decease, to the son, with
as much clearness as the preceding words give the whole estate to
his wife. They manifest the intention of the testator to make a
future provision for his son as clearly as the first part of the
bequest manifests his intention to make an immediate provision for
his wife. . . . The limitation in remainder shows that in the
opinion of the testator, the previous words had given only an
estate for life. This was the sense in which he used them. "
Page 104 U. S. 297
This case establishes conclusively the contention of plaintiff
in error that the words of the will under consideration, granting
an estate to the wife, grant only an estate for life, and not an
estate in fee simple.
But it is contended by defendants in error that there are words
in the last clause of the will which imply an absolute power of
disposition, and give to the children only what may remain
undisposed of in the wife's hands at the termination of her estate.
The clause is
"If she should marry again, then it is my will that all the
estates herein bequeathed, or whatever may remain, shall go to my
surviving children, share and share alike."
The contention rests upon the words, "or whatever may remain,"
and is that they imply that a part or all of the estate might be
absolutely disposed of by the wife during her widowhood.
If the purpose of the testator in the disposition of his
property is what the other parts of his will clearly indicate, then
these words cannot be construed to change that purpose. They can
have operation without giving them that effect. He was seised of
real estate and possessed of personal property. Both were included
in the devise to the wife, and she was to have the enjoyment of
both during her widowhood. The use of many species of personal
property necessarily consumes it. The words under consideration may
therefore fairly be construed to refer to the personalty, and the
entire clause to give to his children a remainder in the real
estate, and whatever of the personalty was not consumed by the
widow during her widowhood.
This construction is warranted by the language of this Court in
Smith v. Bell, supra, which was as follows:
"This suit is brought for slaves, a species of property not
consumed by the use and in which a remainder may be limited after a
life estate. They composed a part, and probably the most important
part, of the personal estate given to the wife, 'to and for her own
use and benefit and disposal absolutely.' But in this personal
estate, according to the usual condition of persons in the
situation of the testator, there were trifling and perishable
articles, such as stock on a farm, household furniture, the crop of
the year, which would be consumed in the use, and over which
the
Page 104 U. S. 298
exercise of absolute ownership was necessary to a full
enjoyment. These may have been in the mind of the testator when he
employed the strong words of the bequest to her."
This passage shows that in order to carry out the evident
purpose of the testator, general words which are applicable to
property of different kinds may be restricted to property of a
particular kind. For instance, that the phrase "or whatever may
remain," in the will under consideration, may be limited to
personal property only, though used in a sentence which applies to
both real and personal estate.
On this subject,
Green v. Hewett, decided by the
Supreme Court of Illinois, 12 Cent.Law Jour. 58, is precisely in
point. The will in that case provided as follows:
"
Second. After payment of such debts and funeral
expenses, I give and bequeath to my beloved wife the farm on which
we now reside; also all my personal property of every description,
so long as she remains my widow, at the expiration of that time the
whole, or whatsoever remains, to descend to my daughter, M. T."
The court held that under this devise, the widow did not take a
fee, and said:
"The use of that expression [whatsoever remains] is of no vital
significance, and cannot be permitted to override the clearly
expressed intention that the widow should take a life estate
only."
The next position of the defendants in error is that even
conceding that the will gives the widow of testator an estate for
life, yet it conferred on her during her widowhood the power to
convey the entire estate in fee, and she having so conveyed, the
defendants in error who claim under her have a good title.
But the authorities are adverse, and show that when a power of
disposal accompanies a bequest or devise of a life estate, the
power is limited to such disposition as a tenant for life can make,
unless there are other words clearly indicating that a larger power
is intended.
Thus, in
Brant v. Virginia Coal & Iron Co.,
93 U. S. 326, the
words of the will were:
"I give and bequeath to my beloved wife Nancy Sinclair all my
estate, both real and personal; that is to say, all my lands,
cattle, horses, sheep, farming
Page 104 U. S. 299
utensils, household and kitchen furniture, with everything that
I possess, to have and to hold during her life, and to do with as
she sees proper before her death."
By virtue of this power, the widow undertook to convey the fee
of the land. But this Court, speaking by MR. JUSTICE FIELD,
said:
"The interest conveyed by the devise to the widow was only a
life estate. The language admits of no other conclusion, and the
accompanying words 'to do with as she sees proper before her death'
only conferred power to deal with the property in such manner as
she might choose, consistently with that estate, and perhaps
without liability for waste committed. The words used in connection
with a conveyance of a leasehold estate would never be understood
as conferring a power to sell the property so as to pass a greater
estate. Whatever power of disposal the words confer is limited by
the estate with which they are connected."
See also Bradley v. Wescott, 13 Ves.Jr. 445;
Smith
v. Bell, supra; Boyd v. Strahan, 36 Ill. 355.
It is next insisted by the defendants in error that the statute
of Nebraska, according to which the will must be construed, favors
the construction contended for by them. The statute declares,
"Every devise of land, in any will hereafter made, shall be
construed to convey all the estate of the devisor therein which he
could lawfully devise, unless it shall appear by the will that the
devisor intended to convey a less estate."
General Statutes of Nebraska, sec. 124, c. 17. We are at a loss
to see how the statute supports the view of one party to this suit
more than the other. According to the construction of the plaintiff
in error, the devise vested in the widow of the devisor a life
estate, remainder in fee to his children; according to the
construction of defendants in error, it vested the fee in the
widow. By either construction, the devise conveyed all the estate
of the devisor in the property devised. This is all the statute
demands.
Lastly, it is claimed by defendants in error that it is the
settled rule that where a devisee, whose estate is undefined, is
directed to pay debts, the devisee takes an estate in fee.
The rule has no application here, for, as we have seen, the
estate of the devisee and executrix is clearly defined. A
direction
Page 104 U. S. 300
to pay debts cannot enlarge it. The case of
Smith v. Bell,
supra, is precisely in point against the application of the
rule to this case.
We have no doubt about the true construction of this will. Edith
J. Dawson took under it an estate for life in the testator's lands,
subject to be divested on her ceasing to be his widow, with power
to convey her qualified life estate only. Her estate in the land
and that of her grantees determined on her marriage with
Pickering.
The judgment of the circuit court must therefore be reversed and
the cause remanded to that court with directions to proceed in the
case in conformity with this opinion, and it is
So ordered.